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Located in the heart of Philadelphia, Gambone Law helps those facing criminal charges in Pennsylvania and New Jersey. If you’ve been arrested, contact Alfonso Gambone by filling out this brief form or by calling 215-240-7377. We answer 24 hours a day, every day of the week.

I’ve written a lot on recent changes to DUI prosecutions in Pennsylvania, specifically those having to do with blood draws.

Why Birchfield was important to DUI prosecutions in Pennslyvania?

You may recall from my previous blogs that the Supreme Court decision in Birchfield v. North Dakota now requires police to obtain a search warrant prior to drawing a person’s blood. While police may obtain the blood without a search warrant, that blood will likely be held inadmissible. Inadmissible means that the prosecution can’t use the evidence against a person charged with drunk driving.

DUI’s in Pennsylvania become more severe as a person’s blood alcohol concentration (BAC) increases. Under Section 3802a1, General Impairment, a first time DUI offender wouldn’t face any type of license suspension but a highest tier DUI offender would face a mandatory minimum 3 days in jail and a 12 month license suspension (.16 BAC or higher). Recently the Pennsylvania Supreme Court, in Commonwealth v. Myers, issues an opinion regarding the issue of search warrants and implied consent in the Commonwealth.

Pennsylvania Supreme Court on implied consent and DUI blood draw

In this opinion, the court specifically addressed the issue as to whether the implied consent law in Pennsylvania provided an exception to the search warrant requirement which came from the Birchfield US Supreme Court decision. In the Myers case, the Supreme Court specifically said that implied consent is only an exception to the search warrant requirement if the drive voluntarily provides that consent. This basically means that a person who is unable to consent due to their physical state (unconscious) doesn’t give implied consent. In the case of Myers, the driver’s blood was taken at a hospital while he was unconscious. The prosecution in Myers argued that the driver, because of the implied consent law in Pennsylvania (Section 1547b1), had already given consent so a search warrant wasn’t necessary.

Again, while Myers could still be prosecuted for drunk driving, the prosecution wasn’t able to introduce the blood evidence against him. This would force the assistant district attorney to seek lesser DUI penalties which would substantially reduce Myers’ criminal exposure.

Consent as a Search Warrant Exception to the DUI blood draw

The Myers decision is important because it somewhat implies that the driver’s consent would of provided a way around the Birchfield search warrant requirement, but many courts in Pennsylvania continue to debate this issue. The court in Myers specifically stated that a driver’s unconsciousness doesn’t negate his constitutional rights and therefore, isn’t a valid exception to the search warrant requirement under the Fourth Amendment. The court, in its decision, reasoned that police could still attempt to obtain a search warrant even if a driver was unconscious and their failure to do so made the blood inadmissible.

Going forward in Pennsylvania, this decision is important because an assistant district attorney could argue that because a driver voluntarily consented, police didn’t have to obtain a search warrant. This recent decision would have changed my advice regarding whether a person should voluntarily consent to a blood draw. Some would argue that a person should consent because a person cannot consent to something that isn’t constitutionally permissible. The Myers decision, however, effectively creates consent exception to the Birchfield DUI search warrant requirement and prosecutors will more than likely argue that, that consent negates any need for a search warrant. Keep in mind that a refusal carries with it criminal and civil sanctions and PennDot can still suspend a persons’ driver’s license based on the refusal alone, regardless of what occurs in a criminal courtroom.

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Get Help Now

Located in the heart of Philadelphia, Gambone Law helps those facing criminal charges in Pennsylvania and New Jersey. If you’ve been arrested, contact Alfonso Gambone by filling out this brief form or by calling 215-240-7377. We answer 24 hours a day, every day of the week.